Calling in to CNN, Republican attorney Victoria Toensing repeated the false claim that President Clinton carried out the same authority President Bush did with regard to domestic surveillance.

On the December 21 edition[1] of CNN's The Situation Room, host Wolf Blitzer held a one-on-one discussion with CNN senior legal analyst Jeffrey Toobin regarding recent efforts by numerous conservatives to falsely equate President Bush's authorization of warrantless domestic surveillance[2] with the Clinton administration's use of physical searches without warrants. In the middle of this discussion, Blitzer informed his viewers that Republican attorney Victoria Toensing "has called us ... and wants to weigh in." Once on the air, Toensing repeated the claim that Clinton "did carry out the same authority" as Bush, citing as evidence Clinton's handling of the Aldrich Ames case and 1994 congressional testimony by Jamie Gorelick, then a deputy attorney general. Blitzer made no effort to challenge Toensing's highly misleading argument.

Toensing appeared to be responding to Toobin's earlier statement that the authority assumed by the Clinton administration regarding the surveillance of foreign intelligence activities "never went beyond those powers" granted the president by the Foreign Intelligence Surveillance Act[3] (FISA) and that the Clinton administration "followed the FISA law." Toensing retorted:

TOENSING: Well, the Clinton administration did carry out that authority when they went into Aldrich Ames's house without a warrant. And they argued before the House -- Jamie Gorelick did -- that they had the inherent -- the president had the inherent constitutional authority to do so.

Toensing's assertion -- that the physical search of Ames's house and the Gorelick testimony demonstrate that the Clinton administration did not consider itself bound by FISA -- is simply false.

When Gorelick testified[4] before the House Intelligence Committee in 1994 that the president had the "inherent authority to conduct warrantless physical searches," FISA did not apply to physical searches for foreign intelligence purposes, as Media Matters for America has noted[5]. A year later, Congress -- with Clinton's support -- amended[6] FISA to require court orders for physical searches. The Clinton administration thereafter never argued[7] that any "inherent authority" pre-empted the new warrant requirements for physical searches under FISA.

The Bush administration, on the other hand, has argued that it had the authority to authorize the National Security Agency (NSA) to eavesdrop on domestic communications without warrants, despite FISA's clear restrictions on warrantless electronic eavesdropping.

Toensing's use of the Aldrich Ames case[8] is similarly misleading. The joint CIA/FBI investigation of Ames, a CIA analyst ultimately convicted of espionage, also took place prior to the 1995 FISA amendment requiring warrants for physical searches. Therefore, when the Clinton administration ordered investigators to go "into Aldrich Ames's house without a warrant," they did not -- as Toensing argued -- "carry out their authority" to bypass the FISA requirements, because FISA did not cover such searches.

At the time of the Ames investigation, FISA did require warrants for wiretaps -- as it does now -- and there is ample evidence that the Clinton administration complied with those requirements. In a 2002 speech[9], U.S. District Court Judge Royce C. Lamberth[10], who previously served on the FISA Court, noted the "key role" the court played in that case to "authorize physical entries to plant eavesdropping devices":

LAMBERTH: I'm sure all of you recall the Aldrich Ames case, the CIA officer who was a Russian spy, and the key role the Foreign Intelligence Surveillance Court played in his case. The attorney general had also authorized physical searches of Ames's home, not pursuant to court order, that turned out to be very productive. Had Ames gone to trial, that would have been a hotly litigated issue. The president and the Congress wisely reacted by amending the statute to now require that physical searches for national security reasons also be authorized by the court. The court had authority all along to authorize physical entries to plant eavesdropping devices, but the court had never authorized physical searches for information.

The Clinton administration's compliance with the FISA requirements regarding electronic surveillance was further substantiated by Mark M. Richard, a former deputy assistant attorney general. According to a Department of Justice (DOJ) review[11] -- conducted by then-assistant U.S. attorney Randy I. Bellows -- of the Los Alamos National Laboratory investigation, Richard established[12] in 1999 that, during the Ames investigation, "the Attorney General was asked to sign as many as nine certifications to the FISA Court in support of applications for FISA surveillance."

During his conversation with Toensing, Blitzer asked twice if the DOJ went to the FISA court after the fact, a reference to FISA's "emergency" provision, which allows the government to obtain a warrant up to 72 hours after starting some surveillance or searches[13]. But his question missed the central falsehood in Toensing's argument. FISA did not apply to physical searches at the time of the Ames investigation or the Gorelick testimony, a point that Blitzer did not raise despite Toobin's having made it minutes before. Prior to Toensing's apparently unexpected commentary on The Situation Room, Toobin had clearly affirmed that "physical searches were not covered by the FISA law" at the time of Gorelick's 1994 testimony and that the Clinton administration never "went ahead and wiretapped American citizens without informing or using the FISA court."

From the December 21 edition[1] of CNN's The Situation Room (4 p.m. ET hour):

BLITZER: Here's the point that Senator [John] Cornyn [R-TX] and many other Republican supporters of the administration make in Gorelick's own words, when she said that the president has, quote, "inherent authority to conduct warrantless physical searches for foreign intelligence purposes." That's the direct quote that she made. And what they argue, the Republicans, Senator Cornyn included, is physical searches are no different, in effect are the same as wiretapping.

TOOBIN: Well the statement, as I understand it, and here we're getting into some real details. In 1994, when Jamie Gorelick made that statement, physical searches were not covered by the FISA law. And that was changed in 1995. But I think the general point you're making is right.

Jamie Gorelick at least appeared to say there were certain inherent powers in the presidency that went beyond what FISA provided for. The Clinton administration always asserted they never went beyond those powers, but there does appear to be a statement of -- claiming inherent authority. The Bush administration now appears both to be claiming that authority and perhaps using it in this very controversial program that we've been talking about since last week.

BLITZER: But there's no evidence that the Clinton administration actually went ahead and wiretapped American citizens without informing or using the FISA court?

TOOBIN: Absolutely not. In fact, what the Clinton administration has said and did was that they followed the FISA law, and the FISA law prohibited wiretaps of Americans without a court order.

BLITZER: When we discussed this yesterday here in The Situation Room, we spoke with the former deputy director of the CIA, John McLaughlin, who made the point that one reason why they wanted to change the rules after 9-11 was because there would be a lower threshold, a lower standard for going forward with these wiretaps without the FISA court orders. It wouldn't be probable cause as much as it would be some sort of reasonable cause. And that was a lower threshold than what FISA would require.

TOOBIN: Well, that's right. FISA -- I mean, FISA's not all that big a hurdle, it's worth pointing out. Of 19,000 applications under FISA, five have been rejected. So it's virtually a rubber stamp. But it is some sort of hurdle, and the Bush administration, as former deputy director McLaughlin said yesterday, they wanted to reduce that hurdle to the extent they could. The question is, under the Constitution, are they allowed to do it?

BLITZER: Stand by for a moment, Jeff. Victoria Toensing has called us. She's a former Justice Department official. She's a well-known Washington attorney. Vickie, you're hearing the discussion I'm having now with Jeff Toobin, and you wanted to weigh in. So go ahead. What's your point?

TOENSING: Well, the Clinton administration did carry out that authority when they went into Aldrich Ames's house without a warrant. And they argued before the House -- Jamie Gorelick did -- that they had the inherent -- the president had the inherent constitutional authority to do so.

BLITZER: Did they go to the FISA court after the fact, do you know, Vickie?

TOENSING: Well, I don't know if they got a warrant after the fact, because their position was, in her testimony, was that the president, and I quote, "has the inherent authority to conduct warrantless physical searches for foreign intelligence purposes." And the interesting thing about this is it was actually a criminal case by that time because they were looking at Aldrich Ames as having committed espionage.

BLITZER: Aldrich Ames was the former CIA analyst who was convicted and serving a life sentence for spying for the then-Soviet Union. Jeff, are you familiar with the technical points of that Aldrich Ames search?

TOOBIN: You know, I really am not. It's worth noting that Aldrich Ames pleaded guilty, so there was never a court test of the appropriateness of that search. So no court ever passed on it. But how -- what authority was used, I am afraid to say, I certainly just don't know what was used.

TOENSING: Well, I can tell you what Jamie Gorelick said before the House committee.

BLITZER: Go ahead.

TOENSING: She said, "We relied on the inherent authority of the president to conduct warrantless searches." That's a quote.

BLITZER: Do you know of any other examples, Vickie, besides the Aldrich Ames example that you cite?

TOENSING: No, I don't, but I'm well aware of that one. So they did -- nobody was crying for impeachment when Bill Clinton did it in the Aldrich Ames case.

BLITZER: And we don't know if they subsequently went to FISA, because they do have up to 72 hours after a warrantless wiretap to go ahead and get FISA to sign off on it.

TOENSING: Well, I suspect that they didn't, or they would have said it. And the ACLU [American Civil Liberties Union] was very upset, so the purpose of the hearing was to see if legislation was needed in order to give that authority.

BLITZER: Victoria Toensing served in the Justice Department during the Reagan administration. She was watching our program, called us in. And thanks for doing so. Vickie.